A Conscientious Objector's Guide to the International Human Rights System

The African Commission on Human and Peoples' Rights: overview

The African Charter on Human and Peoples' Rights (ACHPR) from 1981, which entered into force in 1986, is Africa's oldest human rights instrument, and established the African Commission on Human and Peoples' Rights.
Article 8 of the ACHPR states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The right to conscientious objection to military service could be derived from this article, similar to article 18 of the ICCPR and article 9 of the ECHR.

Other potentially relevant provisions of the ACHPR are article 2 (non-discrimination), article 5 (freedom from torture), article 7 (right to fair trial), article 10 (right of association), and article 16 (right to education), among others. The full text of the ACHPR is available at http://www.achpr.org/instruments/achpr/.

The African Commission is officially charged with three major functions:

the protection of human and peoples' rights

the promotion of human and peoples' rights

the interpretation of the African Charter on Human and Peoples' Rights

It consists of 11 members elected by the AU Assembly from experts nominated by the state parties to the Charter.

Similar to the Treaty bodies of the United Nations and the Human Rights Council, the African Commission has established several procedures to monitor and protect human rights, such as:

Legal Bases

The African Charter on Human and Peoples' Rights (ACHPR) from 1981, which entered into force in 1986, is Africa's oldest human rights instrument.

Article 8 of the ACHPR states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The right to conscientious objection to military service could be derived from this article, similar to article 18 of the ICCPR and article 9 of the ECHR.

A Conscientious Objector's Guide to the International Human Rights System

African Commission on Human and Peoples' Rights: State Reporting Procedure

Summary

Under the ACHPR, states are required to submit reports to the African Commission on measures taken to ensure that the rights enshrined in the African Charter are being implemented. The state reporting procedure is considered as a dialogue, in which the state concerned and the African Commission exchange their views. The state report is published by the African Commission prior to the session, to give civil society the opportunity to comment on the report of the state.

The state report is reviewed in public, and following the dialogue the African Commission will issue "Concluding Remarks/Observations" to the state concerned. The state's report and the Concluding Remarks/Observations are transmitted to the AU Assembly of Heads of State and Government, and are only later published by the African Commission.

So far, conscientious objection to military service has not been addressed by the African Commission.

1. Likely results from the use of this mechanism

During the examination of State reports, the African Commission also draws on information provided by NGOs, and can raise issues based on information from NGOs. It might then include the issue in its Concluding Observations and make recommendations to the State concerned. The Concluding Observations will be transmitted to the State concerned and form part of the African Commission's Activity Report.

2. To which States does this mechanism apply?

The mechanism applies to those States who have ratified the African Charter on Human and Peoples' Rights.

3. Who can submit information?

According to rule 74 of the Rules of Procedure of the African Commission, “any interested party wishing to contribute to the examination of the Report and the human rights situation in the country concerned” can send in a contribution. This is not limited to NGOs with observer status with the African Commission.

4. When to submit information?

Information has to be submitted to the African Commission at least 60 days before the examination of a State's report. However, as the Secretariat of the African Commission has to transmit a list of questions to the State concerned at least six weeks before the session, it is advisable to submit information at least 3-4 months before examination of a State report.

Information on upcoming sessions of the African Commission is available at http://www.achpr.org/sessions/. Information on specific States, including State reports, Concluding Observations by the African Commission, and NGO reports, is available at http://www.achpr.org/states/. However, on the website it often says “Concluding Observations: available”, without giving a link.

5. Any special advice for making a submission to this mechanism?

Although there is no set format for NGO reports, it is useful to organise the structure of the report around the rights enumerated in the African Charter on Human and Peoples ́ Rights. It is important to make reference to the State report, or to the lack of a state report, and to comment on the information provided by the State.

Although the framework of reference for the African Commission is the African Charter on Human and Peoples' Rights, it might be useful to refer to the standards and jurisprudence developed by other human rights systems in relation to conscientious objection to military service, as this issue has so far not been dealt with by the African Commission.

It can be useful to draft suggested questions to be posed by commissioners, organised by theme and relevant charter provisions and include these in the NGO report.

Lobbying before and during the session

It is advisable to not only submit a report, but to engage with the African Commission prior, during, and after the consideration of a State's report. It can be useful to identify the commissioner responsible for your country and to seek to forge a collaborative relationship and engagement throughout the process. Under normal circumstances, the commissioner responsible for promotional activities in the State concerned will also be the rapporteur to lead the discussion on the report.

NGOs may also take advantage of the ability of organisations with observer status to make comments on other agenda items to address the content of a particular State party’s report. Many issues raised by the reports can be addressed either through the agenda item on the general situation of human rights in Africa or in one of the thematic agenda items.

Formal and informal NGO briefings

NGOs may also want to consider the organisation of side events or private briefings for commissioners as alternative fora for engaging in discussion on the content of State reports.

6. Special rules of procedure or advice for making a submission?

No

7. What happens to the submission (how long will it take)?

The African Commission examines 3-4 State reports during each of its regular sessions. The Secretariat of the Commission prepares a list of questions, based on information received by the State and from other sources, including NGOs. This list of questions will be transmitted to the State concerned at least six weeks before the session, together with a request to send a “highly qualified official” to the session.

The consideration of the State's report happens during a public meeting of the African Commission, in the form of a dialogue with the representative(s) of the State concerned. Following the dialogue, the Commission meets in a closed session to discuss its comments and recommendations.

The state's report and the Concluding Remarks/Observations are transmitted to the AU Assembly of Heads of State and Government, and are only later published by the African Commission.

8. History of the use of this mechanism

This mechanism has so far not been used for conscientious objection to military service.

Legal Bases

The African Charter on Human and Peoples' Rights (ACHPR) from 1981, which entered into force in 1986, is Africa's oldest human rights instrument.

Article 8 of the ACHPR states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The right to conscientious objection to military service could be derived from this article, similar to article 18 of the ICCPR and article 9 of the ECHR.

A Conscientious Objector's Guide to the International Human Rights System

Summary

Under Articles 55 and 56 of the African Charter on Human and Peoples' Rights, everyone can submit information or communications to the African Commission. By submitting a communication to the African Commission, victims of human rights abuses who for one reason or another could not obtain justice in their countries after exhausting all the available legal remedies may obtain help. A case that has been submitted to the African Commission should not at the same time be submitted to another international human rights system.

Before a decision on the merits of the complaint, the African Commission may request from the State concerned to take provisional measures to prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands.

After investigating a complaint, the African Commission makes a recommendation to the State(s) concerned, to ensure that the occurrences of human rights violations are investigated, that the victim(s) is compensated (if necessary) and that measures are taken to prevent the recurrence of human rights violations. The African Commission also offers its “Good Office” to achieve a friendly settlement of the case.

The African Commission's recommendations are submitted to the Assembly of Heads of State and Government of the African Union for adoption.

All measures taken by the African Commission remain confidential, unless the Assembly decides otherwise. However, a report will be published following the adoption by the Assembly.

1. Likely results from use of mechanism

Following the submission of a communication, the African Commission will first take a decisions on admissibility. If a complaint is found admissible, the African Commission will investigate the complaint and take a decision on the merits of the case, and make recommendations to the State concerned. This may include compensation to the victim(s) of human rights violations and measures to prevent a recurrence.

To prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands, the African Commission may request from the State concerned to take provisional measures before a decision on the merits of the complaint.

Besides a decision on the merits, the African Commission is also available to achieve of friendly settlement of the case.

The African Commission's recommendations are submitted to the Assembly of Heads of State and Government of the African Union for adoption.

All measures taken by the African Commission remain confidential, unless the Assembly decides otherwise. However, a report will be published following the adoption by the Assembly.

A complaint can be brought against any State which had jurisdiction over the victim at the time of the violation, and which has at the same time ratified the African Charter.

3. Who can submit information?

Under article 55 of the African Charter, the African Commission can receive communications from anyone, including individuals or NGOs.

While the complainant can request to remain anonymous, a complaint cannot be submitted anonymously. It needs to include name and address of the complainant and needs to be signed.

4. When to submit information?

A complaint should be submitted to the African Commission within a reasonable period from the time local remedies are exhausted. After the exhaustion of local remedies, or where the complainant realises that such remedies shall be unduly prolonged, he or she can submit the complaint to the African Commission immediately. The African Charter does not give a time limit but talks of reasonable time. It is therefore always advisable to submit a complaint as early as possible.

5. Special rules of procedure or advice for making a submission?

How to write a complaint:

The communication procedure of the African Commission is straightforward, and does not require legal representation. A complaint can be brought by the victim of alleged human rights violations, or by another person acting on his or her behalf, or any group of people, including NGOs.

For a complaint to be admissible, it needs to meet the following requirements:

The name, nationality, and signature of the person or persons filing it, or in the case of NGOs the name(s) and signature(s) of the legal representatives;

whether the complainant wishes his or her identity to be withheld from the State concerned;

an address for correspondence, possibly including fax and/or email;

a detailed description of the alleged human rights violations, specifying date, place, and nature of the alleged violations;

the name(s) of the State(s) alleged to have violated the African Charter;

any steps taken to exhaust domestic remedies, or an explanation why an exhaustion of domestic remedies would be unduly prolonged or ineffective;

an indication that the complaint has not been submitted to another international settlement proceeding.

Emergency procedures:

A communication should indicate if the victim's life, personal integrity or health is in imminent danger. In such an emergency, the African Commission has the power to adopt provisional measures, urging the State concerned not to take any action that will cause irreparable damage to the victim until the case has been heard by the African Commission. The African Commission can also adopt other urgent measures as it sees fit.

6. What happens to the submission (how long will it take)?

Once a communication has been submitted to the Secretariat of the African Commission, it will be registered and the Secretariat will acknowledge receipt of the communication.
As a first step, the African Commission has to be “seized” by the communication, which means it decides to deal with it, at the latest during the first session following receipt of the communication. After the African Commission has been seized by a communication, the complainant and the State party are informed, and have three months to comment on the communication, and on its admissibility. At the next session of the African Commission, a decision will be taken as to the admissibility of the complaint.

After a complaint has been declared admissible, the African Commission will either seek to obtain a friendly settlement, or decide on the merits of the case. If a friendly settlement is reached, a report containing the terms of the settlement is presented to the African Commission at its session. This will automatically bring consideration of the case to an end.

If there is no friendly settlement, the Secretariat of the African Commission prepares a draft decision on the merits taking into account all the facts at its disposal. This is meant to guide the Commissioners in their deliberations. During the session of the African Commission, the parties are liberty to make written or oral presentations. Some States send representatives to the African Commission's sessions to refute allegations made against them. NGOs and individuals are also granted audience to make oral presentations. However, there is no requirement to make oral presentations, or to be present at the session – written submissions are sufficient.

Finally, the African Commission will decide whether their has been a violation of the African Charter or not. If it finds on a violation of the Charter, it will make recommendations to the State concerned.

If a violation is found, the recommendations of the African Commission will include the required action to be taken by the State party to remedy the violation.

The mandate of the African Commission is quasi-judicial and as such, its final recommendations are not in themselves legally binding on the States concerned.

These recommendations are included in the Commissioner's Annual Activity Reports which are submitted to the AU Assembly of Heads of State and Government in conformity with article 54 of the Charter. If they are adopted, they become binding on the States parties and are published.

7. History of the use of this mechanism

To the knowledge of the authors of this guide, this mechanism has so far not been used in a case of conscientious objection to military service.

It is therefore highly recommended that you get in touch with the authors if you want to engage in standard setting with the African Commission.

Legal Bases

The African Charter on Human and Peoples' Rights (ACHPR) from 1981, which entered into force in 1986, is Africa's oldest human rights instrument.

Article 8 of the ACHPR states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The right to conscientious objection to military service could be derived from this article, similar to article 18 of the ICCPR and article 9 of the ECHR.